Archive for August, 2009

We agree with Tammy Wynette (which surprises us) and with our friend Anne Reed (which doesn’t surprise us at all) . Sometimes it’s hard to be a woman. And those days just don’t seem to stop coming. Anne’s blog post covers the positive and the negative of gender in the courtroom, citing older research and wondering if changes in gender roles and perceptions would make things different now. Alas, sometimes it’s still hard to be a woman and the new information coming out doesn’t make any woman want to burst into song (unless it’s an old Linda Ronstadt song).

Let’s do a quick review of the studies out recently that serve up one hit after another for the women among us. First, we find out that if you are a woman attorney who wants to be a judge, it helps (even in 2009) if you have a masculine-ish first name (like Jim).

Then, a new survey from USA Today reports that about 70% of Americans think women “should” take their husband’s last name when they marry. We would see this as reflecting more traditional values. But the study doesn’t stop there. Fifty per cent (that’s 50%!) say the government should mandate women take their husband’s last names upon marriage. This even caught the attention of an evolutionary psychologist who says there is no evolutionary biology reason that a woman should take a man’s last name as long as any resulting children have his name!

And then in a brief ray of sunshine, we hear a study debunking the myth that women are “sort of more tentative than men, aren’t they”? Alas, myths, like stereotypes exist for a reason. Whether women are more tentative or not, we tend to believe they are and when women behave in non-gender-stereotypical ways, we tend to evaluate them more negatively.

There isn’t much good news out there so what do we do for our female colleagues, witnesses, plaintiffs and defendants?

We monitor speech for indicators of tentativeness and offer feedback to make language and non-verbal presentation confident, assertive and approachable.

We make them ‘like’ jurors by finding ways they can connect through testimony, demeanor, activities, attire, life experiences, values, et cetera.

We coach female attorneys to make direct eye contact, present clear evidence, tell an intriguing and persuasive story, and sequence the case narrative effectively. (Just like we would coach a male attorney.)

In short, we remain aware of the uphill battle women have in the courtroom and we stay attuned to attitudes around the country (even when we don’t agree with them) and we do pretrial research to identify biases against female parties or attorneys and modify our approach based on lessons learned. Having quoted Tammy Wynette and Linda Ronstadt, let’s close this one out with another female artist speaking to women everywhere—Ginger Rogers who famously said she “did everything Fred Astaire did except backwards and in high heels”. Yup. Sometimes it’s hard to be a woman.

Comments Off on Redux: Sometimes it’s hard to be a woman (with appreciation to Tammy Wynette, Linda Ronstadt and Anne Reed)

On February 18, 2009 the National Academy of Sciences released a long-awaited report on the fallibility of forensic science techniques. A month later, on March 28, 2009, European police reported that the 16 year search for an elusive female serial killer was likely based on misinterpreting dirty lab materials. And now, we hear a new report that DNA evidence, supposedly the gold standard of forensic evidence, can be fabricated. And it isn’t even that hard. “Any biology undergraduate could perform this” says the lead author of the paper.

What does this mean? Well, for one thing it seems that it should be very simple to draw DNA evidence into question in front of jurors. Or does it? We increasingly see mock jurors reporting they love legal shows on television. The shows they most love on television (CSI, Law & Order, et cetera) all focus on the power of science to solve crimes. They believe. All you need is a speck of evidence and it can be centrifuged, soaked in dye, blown up on a computer and you can then track it back to the manufacturer and then match credit card receipts to the purchaser. You then confront them and they confess with a curled lip and often a smirk. The fantasy that the unknown can be discerned in a test-tube is almost irresistible. It requires an abandonment of faith that is painful. On the other hand, for many the faith in government has never felt more fragile.

We may know that DNA evidence can be faked and we may read the National Academy of Science’s report and know that forensic methods need to be carefully examined. But whether jurors will believe that or see it as a cagy defense move is an open question. It’s a question well worth exploring in pre-trial research. How will it turn out? That may depend on the skill of advocacy. That’s why we’re talking about it!

[Dr. Doug Keene will be speaking on this topic in October at the Annual Meeting of the American College of Trial Lawyers.]

Oh, the things you can find on the internet. How long is a severed head conscious? How long does it take to suffocate? How much water should you drink each day? Which country was the most violent in 2008? You can find anything. And it’s at your fingertips instantly. Of course, it is up to you to determine what you can believe.

As a child, I was amazed by the World Book Encyclopedia. It opened up my small rural world in ways I could hardly imagine—other countries, urban facts, major social issues and events. While the CBS Evening News with Walter Cronkite was a nightly presence in my household, the World Book was my version of the internet. Now, of course, I know that by the time such books are published—they are already dated. And the internet offers easy access to answers to any question I might have. For example, do hawks ever experience payback for eating pretty, defenseless songbirds?

When we are so used to accessing information at a moment’s notice, expecting jurors to NOT do that is naïve. Imagine you are sitting in a deliberation room and someone says “I wonder if this fact was true” and you reach for your internet-enabled telephone to find out. It is natural. So much so that we keep reading in the news about mistrials due to juror curiosity and subsequent internet research (see our previous post).

We are seeing increasing attention to these issues by various courts. Judges are issuing specific instructions about not blogging, tweeting, or accessing the internet to find information. Some courts are considering confiscating cell phones from jurors during deliberation. How can we encourage jurors to stop doing what comes naturally (i.e., internet research) and encourage them to focus on the agreed upon rules of the courtroom?

First, we need to encourage jurors to think of the courtroom as a playing field where both sides have agreed to play by a set of prescribed rules. One of those rules is that the party(s) on trial will be judged only by a set of facts that both sides have had an opportunity to examine and challenge.

Second, we need to consider what questions our jurors will have as they listen to a story unfold. Jurors today avidly watch courtroom dramas on television and expect a similar approach to story-telling in the courtroom. Sequence your case presentation so that it answers jurors’ questions as they would naturally arise.

Third, be credible and persuasive. This is easier said than done, but there are verbal and non-verbal cues jurors (and the rest of us) see as signs of honesty and candor. Transmit those signs. Jurors want to hear a compelling story but they are also suspicious and vigilant to the possibility of being lied to, tricked or fooled.

Fourth, learn from pre-trial research. After living with a case for so long, you are often blinded to the reactions “normal people” will have to the case. Do the research. Identify the questions caused by confusion or doubt. And weave the answers into your presentation.

We can’t expect jurors to stop looking for answers to questions that arise for them. We can however, encourage the courts to continue their exploration of how to address this post-World Book issue, while we can create case narratives that respond to the questions of jurors in the 21st century.

A recent article in American Sociological Revue, about which a blog was written on the Psychology Today website by Dr. Gad Saad, concluded that of all cultural subgroups in America today, atheists are the most mistrusted and “detested”.

For 15 years we have been collecting data from focus groups and, when possible, from court venires. It has usually taken the form of an open-ended question: “Have you ever supported—now or in the past—any church, temple, or other religious organization? If yes, please explain.” In litigation that has been specifically tied to church issues (such as our work on cases of sexual abuse of children or parishioners by clergy) the questions get far more detailed. While I understand my own reasoning behind the form of the question (discussed below), I realize now that I have omitted atheists and those who hold to their own non-institutional views of spirituality, creation, and fate.

Living in Austin, home of atheist activist Madelyn Murray O’Hair and her born-again Christian son, I read these reports and pondered the question “what difference would it make”? I can’t be sure. We do know that the more religiosity an individual professes, no matter where they live in the world, the more likely they are to be punitive toward the perpetrator of victimless crimes. So perhaps there are good reasons to assess the lack of belief/religiosity as well as the presence of those beliefs. You start before jury selection by profiling what jurors you think you can live with, and which cause you concern. Put the spotlight on jurors you suspect are unsupportive of your case, and keep the rest out of sight.

The reason that I have asked the form of the question noted above relates to the value of understanding the social cohort of the juror, and what pressure they might experience if they supported my client’s position. For instance, given the tragic impact of the Bernie Madoff scandal on the American Jewish community, my radar would be alerted as regards Jewish jurors in any case related to alleged financial transgressions. If someone was a member of an evangelical Christian church, I would have concerns about their view of a plaintiff in a medical negligence case, due to the prevalence of tort reform rhetoric in that community, as well as the possible role of religious fatalism (“it must be God’s plan”) among those who embrace conservative religious dogma.

While this is intuitive and not research based, my view of atheist or even agnostic jurors is relatively pro-plaintiff (civil cases) and pro-defense (criminal cases). By dint of their willingness to publically embrace a socially “reviled” belief system, they are willing to stand against public pressure to conform, and will be more willing to firmly adhere to their own take on the facts. Rhetoric, authority, and social conformity will hold less sway for them.

A greater problem attaches to the issue of an atheist client, if such information is disclosed to the jury. Most readers are now likely saying “that has no probative value—it should not be permitted in evidence”, which is almost always true. Yet, if the client has ever commented on it in public, or if those opposed to the client have raised it in public, it will be on the internet. And as our blogging on internet issues has discussed, you are safest assuming that what is on the web is in the jury room. One way that jurors connect with litigants is through affiliations. “She must be a responsible person—she volunteers with Meals on Wheels”; “He is a deacon in his church, he must be honest”, etc. If ever it is crucial to have a likeable client, it is in a situation where that person is a member of a cultural subgroup that is viewed negatively or fearfully. The issue of religion is not just one of spiritual community, but also one of ‘in-groups’ and ‘out-groups’; ‘like-me’ and ‘not like-me’; ‘home-team’ and, sadly, ‘away, away’.

In an odd twist on the coverage we’ve seen of Twittering, texting, and internet-exploring jurors—the trial of a man being prosecuted for third-degree rape and sodomy has ended in mistrial. A juror reported receipt of a text message sent from a relative of the defendant. It is not yet known if the defendant requested the text message be sent, but the judge declared a mistrial. A new jury will be selected in February, 2010 and, in the meantime, the defendant remains in custody until a full $25,000 bond has been paid.

This represents a whole new level of concern for the justice system. We’ve had ample media attention on jurors exploring the internet, tweeting, texting, making Facebook entries or writing in their blogs about jury service (see our previous posts on jurors and the internet here and here and here). We’ve even had witnesses on the stand texting their counsel and causing mistrial in a civil fraud case. Most of the coverage of problems with internet and wireless issues relates to juror or witness misconduct. But this approaches reaching into the jury box, not out of it. And that is potentially frightening.

Whether this incident will result in more support for the idea of anonymous jurors will remain to be seen. But, in this instance, allowing only attorneys to have cell phones in court (a new suggestion) would not have made a difference. Fortunately, the juror receiving the text message reported it to the court.

For now, perhaps all we can do is educate jurors on the importance of hearing a case based only on facts presented in court, reporting any outside research or text messages, and to remind each other in the deliberation room that they are to make decisions based only on what is presented as evidence. It’s a leap of faith, this business of trusting jurors. Our mock trial work and post-verdict debriefings of jurors teaches us again and again that jurors take their work seriously and want to do the right thing. We have to take seriously the responsibility of teaching them how to deliberate both effectively and fairly.